Property disputes among cohabiting couples often involve issues such as ownership rights, contributions to mortgage payments, and the division of property upon separation.
As more couples choose to live together without getting married, property disputes have become more common. Unlike married couples, cohabiting partners do not have the same legal protections and rights regarding property ownership. This can lead to complex disputes, especially when relationships end.
Cohabitees and property ownership
The laws relating to property ownership by cohabitees can be intricate. All too often, cohabiting couples continue to believe in the “common law marriage” myth, wrongly thinking that living together for a long time grants them similar rights to married couples. However, this is not the case.
Cohabitees must rely on strict property and trust principles and legal mechanisms such as express trusts, resulting trusts, constructive trusts, and proprietary estoppel to establish their property rights. Ultimately, property disputes among cohabiting couples are resolved under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), which provides the courts with powers to determine property rights and interests. These legal concepts help determine whether a cohabitee has a beneficial interest in a property, even if their name is not on the legal title.
In most cases, where a person buys a property in their sole name before the relationship began, they will typically retain ownership. However, if their partner contributes financially towards the property (such as contributing towards mortgage payments or major renovations), this could result in a successful claim being made by them for a share of the property.
We also frequently see legal transfers of sole-owned property into joint names, often as part of re-mortgaging that property to raise funds to buy a separate joint property. When such transfers take place, extreme care must be taken by the sole owner of the property to safeguard their existing equity in the property when putting it into joint names.
Similarly, disputes can all too easily arise in respect of jointly owned property, primarily over the sizes of the couple’s respective shares in the equity, as well as what should happen to the property now that the relationship has come to an end.
Sale of the property
A common source of dispute in the wake of relationship breakdown relates to the sale of joint property after the parties separate. Where a property is held in joint legal names, it cannot be sold without the consent and cooperation of all the owners.
When one party wants to sell a jointly-owned property while the other does not, several complications can arise, including legal, financial, and emotional challenges. For instance, the BBC reported the story of someone “trapped in a joint mortgage” with their abusive ex-partner, after their ex refused to sell their joint property despite no longer contributing to the ongoing mortgage repayments.
One party may have a strong emotional attachment to the property, making it difficult to agree to a sale. This can be particularly true in cases of inherited property or marital homes. In such cases, it can be possible for one party to buy-out the other’s share of the property. This can be a viable solution if one party is financially capable and willing to retain ownership and their co-owner agrees. However, even where a buy-out is agreed in principle, there may be conflict over the value of the property, and thus the price to be paid to the exiting co-owner in return for their share.
Legal agreements
One of the ways to avoid the above pitfalls is to ensure that couples document their shared intentions and understanding in a written agreement. The main forms of legal agreements that can be used by cohabitees are the following:
- Cohabitation agreements
A cohabitation agreement is used by couples who live together but are not married. It outlines the rights and responsibilities of each partner regarding property, finances, and other aspects of their relationship. This agreement helps prevent disputes by clearly defining how assets and debts will be handled if the relationship ends. It is similar to a prenuptial agreement but for unmarried couples. Our YouTube video, Living Together: The Role of Cohabitation Agreements in Dispute Prevention, provides a helpful overview of the role that these documents play.
- Declaration of trust
A declaration of trust is a document that specifies how property held in trust is to be managed and distributed. It outlines the roles of the trustee and beneficiaries, ensuring that the trustee manages the assets according to the grantor’s wishes. This document is crucial in estate planning, providing clarity and reducing potential disputes among beneficiaries.
Entering into such agreements has the effect of heading-off potential future disputes at the pass and limiting the scope for conflict to escalate into lengthy and expensive court proceedings.
The Birketts view
Navigating these complexities can be challenging, so seeking legal advice and considering all options carefully is essential.
At Birketts, the dedicated property disputes lawyers in our Home Ownership Disputes Team specialise in TOLATA claims and have helped countless people in these situations. Our expert team of TOLATA lawyers are uniquely placed to resolve all kinds of property ownership and cohabitee disputes. Please contact a member of the team to discuss your case and see how we might be able to assist you on a no-obligation basis.
Key Contacts
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2025.